A. Whether a notice given to the transferor of assets by determining the timing of determining the liability to pay capital gains tax, the gains from transfer of assets, and the amount of tax are taxation subject to appeal litigation (affirmative)

(b) Where the transfer margin is calculated based on the standard market price, the scope of necessary expenses deducted from the transfer value among the acquisition expenses of transferred assets;

A. The income tax on the gains from the transfer of assets is abstractly established on the last day of the month in which the amount which serves as the tax base occurs (the month in which the date of the transfer of assets), and the head of tax office having jurisdiction over the domicile of the transferor of assets shall immediately determine the gains from the transfer of assets and the amount of tax for the person who fails to pay the gains from the transfer of assets or the gains from the transfer of assets within one month from the date of the report or voluntary report and payment, and by notifying the relevant resident by entering the tax base, tax rate, tax amount, and other necessary matters in the notice of tax payment in accordance with Article 183 of the Enforcement Decree of the Income Tax Act mutatis mutandis and by notifying the relevant resident of the tax payment notice. Therefore, if the tax office notifies the relevant transferor of the tax by determining the gains from the transfer of assets and the amount of tax to be assessed, it may file an appeal

B. In the case of calculating the transfer margin based on the standard market price pursuant to the main sentence of Article 45(1)1 of the former Income Tax Act (amended by Act No. 4281 of Dec. 31, 1990), the expenses required to acquire the transferred asset shall be deducted from the transfer value of necessary expenses only within the limit of 7/100 of the standard market price of registration tax at the time of acquisition.

A. Article 99 of the Income Tax Act, Articles 146 and 170(4)3(b) of the Enforcement Decree of the same Act, Article 45(1) of the former Income Tax Act (amended by Act No. 4281 of Dec. 31, 1990), Article 94(5) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989)

A. Supreme Court Decision 82Nu140 decided Jun. 28, 1983 (Gong1983, 1195) 88Nu2519 decided Oct. 13, 1989 (Gong1989, 1695)

Attorney Lee Ho-ho, Counsel for plaintiff-appellant

The director of the Southern Incheon District Office

Seoul High Court Decision 90Gu21898 delivered on April 9, 1992

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

1. Judgment on the ground of appeal No. 1 by the Plaintiff’s attorney

The court below recognized that the defendant sent the tax payment notice and the receipt form under Article 9 (1) of the National Tax Collection Act and Article 6 of the Enforcement Rule of the same Act to the plaintiff along with the "paid" notification and the payment slip and received all of the plaintiff. If we examine the related evidences compared with the records, the judgment of the court below is just and acceptable, and the judgment of the court below is not erroneous in the misapprehension of legal principles as to the burden of proof as to the arrival of the tax payment notice, or there is no reason to discuss.

2. Determination on the ground of appeal No. 2

Article 21 of the Framework Act on National Taxes provides that the obligation to pay the income tax shall be established at the end of the taxable period (the main sentence of paragraph (1) 1), but for the income tax to be paid by scheduled return as well as transfer margin of assets, the obligation to pay the amount which serves as the tax base to the last day of the month in which the transfer margin accrues (paragraph (2) 2) shall be prescribed. According to Article 22 of the Framework Act on National Taxes and Article 10-2 of the Enforcement Decree of the same Act, the tax base and tax amount shall be determined at the time of the determination of the tax base and tax amount of the income tax, and Article 146 (1) of the Enforcement Decree of the Income Tax Act (referred to as the "Act") provides that the tax base and tax amount shall be determined at the end of the month in which the tax base and tax amount shall be determined at the time of the final return on the transfer margin of assets belonging to the resident, and Article 142 (3) of the same Decree provides that the tax base and tax amount shall be determined at the last day of Article 16 of the Act.

The judgment of the court below that held to the same purport cannot be deemed to have erred by misunderstanding the relevant provisions of the Income Tax Act, such as the theory of lawsuit, and therefore there is no reason

3. Determination on the ground of appeal No. 3

The court below held that the tax disposition of this case, which calculated capital gains on the basis of the standard market price, is legitimate, since all of the above sales contract cannot be deemed as a document duly prepared, since it does not constitute a case where the defendant can confirm the actual transaction price at the time of acquisition or transfer, in light of related evidence and records, and the provisions of the Acts and subordinate statutes, the judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principle as to the case where the court below can confirm the actual transaction price, such as the theory of lawsuit, or in violation of the principle of substantial taxation.

4. Determination on the ground of appeal No. 4

The court below held that the transfer expenses, such as acquisition tax, registration tax, delegation expenses for registration, brokerage fees, etc., asserted by the plaintiff who acquired and disbursed land among the transferred assets of this case, shall be the transfer expenses under Article 45 (1) 4 of the "Act" before the amendment by Act No. 4281 of Dec. 31, 190, and Article 94 (5) 1 of the "Decree" before the amendment by Presidential Decree No. 12767 of Aug. 1, 1989 provides that the acquisition value of land and buildings shall be the amount calculated by adding 7/100 of the standard market price at the time of acquisition to the standard market price at the time of acquisition in calculating transfer gains according to the standard market price. Thus, the transfer expenses shall not be the expenses actually paid but shall be deducted as necessary expenses only within 7/100 of the standard market price at the time of

Article 45 (1) of the Act prior to the amendment by Act No. 4281 of Dec. 31, 1990 provides that the transfer value of a resident shall be deducted from the transfer value, the amount calculated based on the standard market price at the time of the acquisition of the relevant asset, in cases prescribed by the Presidential Decree, such as the actual transaction price required for the acquisition of the relevant asset ( Subparagraph 1), equipment cost and improvement cost ( Subparagraph 2), capital expenditure prescribed by the Presidential Decree ( Subparagraph 3), and the transfer cost prescribed by the Presidential Decree (subparagraph 4), and Article 94 (4) of the Decree provides that the term “transfer cost prescribed by the Presidential Decree” in Article 45 (1) 4 of the Act refers to the expenses directly paid for the transfer of assets under each subparagraph of Article 23 (1) of the Act and the securities transaction tax paid under the Securities Transaction Tax Act. Since it is apparent that the above expenses alleged by the plaintiff as necessary expenses do not constitute the transfer cost of the transferred asset in this case, it shall be deemed that the above expenses are the transfer cost under Article 45 (1) 45 (4) of the Act.

However, Article 94(5) of the “Decree” in the case of calculating gains on transfer based on the standard market price in accordance with the main sentence of Article 45(1)1 of the Act, which was amended by the Presidential Decree No. 12767 of Aug. 1, 1989, provides that in the case of calculating gains on transfer by the method of the main sentence of Article 45(1)1 of the Act, notwithstanding the provisions of paragraphs (1) through (4), the amount calculated by adding one of the following amounts to the standard market price at the time of acquisition shall be added to the standard market price at the time of acquisition, and the above expenses incurred by the Plaintiff at the time of acquisition of transferred assets shall be lawful in calculating gains on transfer from the standard market price at the time of acquisition by adding one of the following amounts to the standard market price at the time of acquisition (excluding the unregistered transferred assets provided for in Article 70(7)1 of the Act) and Article 44(4)1 of the Act. Thus, the court below's erroneous determination is justified in calculating gains on transfer from the standard market price at the time of this case.

In the end, it is not possible to accept the argument.

5. Therefore, the plaintiff's appeal is dismissed, and the costs of appeal are assessed against the plaintiff who has lost. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Yong-hoon (Presiding Justice)